Full Judgment
Sulaiman, C.J.
1. This is an application in revision by Jagat Narain who was appointed a shahna or watchman by a Commissioner. The Commissioner had been appointed by the Court to attach certain moveable properties belonging to the judgment-debtor which were in a shop. He was ordered to keep them in his custody till the approval of the appointment of a custodian had been given. The Commissioner attached the goods, locked them up in the shop, put several locks on the shop with seals on them and kept the keys with himself. He however appointed the applicant and another person as joint watchmen on a remuneration of 8 annas per day to look after the shop and see that the locks were not tampared with. A list of the articles contained in the shop was also prepared before they were locked in. Subsequently the attachment was released and the goods had to be delivered to the judgment-debtor. When the articles in the shop were: compared with those on the list it was discovered that numerous articles were missing. The judgment-debtor accordingly applied that he should be given the value of those articles and sought relief against the Commissioner as well as the watchmen. The Court below came' to the conclusion that it was the duty of the watchmen to keep watch both during the day and night and that there1 could be no question that some articles, at least, were missing. Dealing with the argument that the list might have been wrongly prepared the Court observed that:
It is quite possible that there should (might ?) have been mistake with respect to some things while enumerating them,
but it held that the shahnas were responsible because they were careless and did not discharge their duties faithfully. The Court exempted the Commissioner from all responsibility. The learned Judge has noted that as for the liability of Pandit Kanhaiya Lal, the judgment-debtor's vakil conceded that he could not be held liable because he had appointed the shahnas. In any case, the position of the Commissioner was certainly that of a surety and if he was released from all liability by the Court below it was open to the judgment-debtor to go up in appeal from that order and to come up in second appeal to this Court. It is therefore not possible to give the judgment-debtor a decree against the Commissioner in case his decree against the watchmen is dismissed. There is no force in tile grounds taken in the revision that the finding of the Court below is defective inasmuch as there is no absolute proof of any theft and also because the possibility of a 'mistake made in the preparation of the list has been conceded. The only convenient way to prove that certain articles are missing is by comparing the articles that now exist with those on the list. The burden would be on the custodian to establish that a mistake was made in preparing the list. In the absence of any such proof the Court would be justified in presuming that the items which are on the list existed at the time when the shop was locked. There is no force in the contention that the assessment of the values made by another Commissioner was not satisfactory because he was not an expert, nor can such a point be taken in revision. The last contention urged is that the watchmen were not sureties within the meaning of Section 145, Civil P.C., and therefore could not be proceeded against in execution.
2. It is quite clear that the Commissioner was appointed to attach the goods, take charge of them to keep them in his custody till the appointment of the custodian was approved. This stage did not arrive. The Commissioner locked the shop and kept the keys of the' lock himself and appointed the shahnas as mere watchmen to look after the shop. They were appointed not as custodians of the properties attached but as mere watchmen. In these circumstances the person who remained liable for the safe custody of the articles was the attaching officer himself (Order 21, Rule 43). The watchmen did not become their custodians nor did they become liable as sureties within the meaning of Section 145, Civil P.C. It therefore seems to me that the remedy of the judgment-debtor, assuming that he has any claim against the watchmen at all, is not by way of execution under Section 145, Civil P.C., treating them as sureties. It is unnecessary for me to express any opinion as to whether any remedy by a separate suit is open against the watchmen who were not appointed by the judgment-debtor or by the' Court, but were appointed by the Commissioner on his own responsibility. I accordingly allow this application and setting aside the order of the Court below dismiss the application as against the applicant. The applicant will have his costs of these proceedings against the judgment-debtor in both Courts.